Judge hits back

Mr Justice Williams links anonymity for judges with misreporting of his rulings

The High Court judge who granted anonymity to other judges involved in the case of the murdered schoolgirl Sara Sharif was criticised over the weekend — and not just by journalists — despite publishing his detailed reasons at the end of last week.

Sara Sharif. Last Tuesday, her father Urfan Sharif was sentenced to a minimum of 40 years in prison for murder and her stepmother Beinash Batool received a minimum of 33 years. Her uncle Faisal Malik was sentenced to 16 years’ imprisonment for causing or allowing her death.

Blaming the messenger

In a written judgment, Mr Justice Williams offered a cynical but deep-felt observation on the media:

Thank goodness that journalists don’t have to operate as the courts do and hear both sides before delivering their verdict! Is reporting which only presents one side of the story fair, responsible and accurate? By any ordinary meaning of those words, I would suggest not. What it is very close to is advocacy or campaigning and that is one aspect of reporting but so is sensationalism as well as good investigative reporting…

It seems to me that to create an assumption that the press reporting will be fair, accurate and responsible is to create the equivalent of the emperor’s new clothes narrative which everyone knows is false, but no one dare state. Many of the media no doubt will adhere to that standard but, regrettably, experience of the real world, as opposed to some utopian ideal, teaches us that some will not — including amongst the mainstream media.

Authorising disclosure to the press of extensive material about sensitive shielded justice proceedings and permitting reporting on it does not mean they will all report it fairly, accurately, and responsibly…

My conclusion on the naming of third parties and judiciary is therefore that there is no presumption that they should be named in shielded justice cases.

Williams responded to what he regarded as misreporting of his own decisions. In a judgment delivered in 2018, he had said:

What this case is not about though is whether an Islamic marriage ceremony (a nikah) should be treated as creating a valid marriage in English law. In fact, the main issue as it has emerged is almost diametrically the opposite of that question; namely whether a nikah marriage ceremony creates an invalid or void marriage in English law.

Williams had been asked whether a ceremony that preceded an 18-year relationship and the birth of four children was what the courts called a “non-marriage”, which would preclude the award of financial relief. Rejecting that claim, he declared the marriage void and granted a decree of nullity.

The Daily Mail reported at the time:

A British court has recognised sharia law for the first time in a landmark decision as a judge ruled that a wife can claim her husband’s assets in the split…

Previously, nikah marriages had been deemed legally non-existent, meaning that any party wishing to terminate the marriage had no legal recourse for any division of assets.

The implications of the judgment are that women married in an Islamic faith ceremony will have an easier time securing a divorce in the UK, paving the way for them to claim half their husband’s assets.

The judge’s assertion last Friday that the newspaper had not reported his 2018 judgment fairly and accurately immediately preceded a paragraph in which he attacked an entirely separate Dispatches programme about the family courts from 2021 and criticised two journalists who had applied to report family proceedings in the Sharif case.

Louise Tickle and Hannah Summers had asked Williams for permission to appeal after the judge refused to lift statutory reporting restrictions on 13 December. He told the two freelance reporters he was adjourning their request for permission to appeal until he had delivered his full reasons, which he could not do before January.

In an article for last week’s Observer, the two journalists reported this a refusal of permission to appeal. The piece now carries a clarification:

This article was amended on 20 December 2024. An earlier version said Mr Justice Williams had “refused permission” to appeal against his decision to anonymise the judges. To clarify: he did not give the journalists permission to appeal but rather adjourned the application, indicating that a determination would be made once he had given written reasons for his decision in the new year.

Drawing attention to the error in his judgment last Friday, Williams accused the reporters of acting irresponsibly:

Accurate – no; fair – no; responsible – I would venture to suggest not.

Anonymity ruling

After criticism of the way Williams had handled the case, he was prevailed on to break into his holiday and deliver a written judgment. Dated 19 December, it was published last Friday and ran to 34 pages. In it, the judge explained that he had been asked by 11 media parties for “disclosure of the papers from historic family court proceedings relating to Sara Sharif” and relaxation of statutory restrictions so that the documents could be reported.

He had previously permitted limited disclosure in a judgment “that must be read together with this”. That judgment, delivered in June, has not yet been approved for publication — although extracts were included in last week’s judgment together with some background to the case.

While Sharif’s father and stepmother were being tried for her murder, the media parties asked Williams to decide whether they could report the earlier family proceedings. A two-day hearing was fixed for early December but abandoned because the criminal trial was still continuing. In the event, a half-day hearing took place on 9 December. There were reporting restrictions to avoid any prejudice to the criminal proceedings. Williams decided that some of the background material could be published once the jury had delivered its verdicts.

The judge continued:

In the course of delivering my decisions it emerged that the media parties considered there was a distinction to be drawn between identification of third parties and the identification of judges and so, although the parties had made submissions in relation to whether third parties should be identified by name or remain anonymous, I permitted written submissions to be made on the issue of identifying judges.

Written submissions were received — but Williams did not say who had provided them or what they said. On 13 December, having considered media submissions, he “concluded that the original decision to maintain the confidentiality of the names of the judges was correct”.

An application for permission to appeal was received shortly after that decision was communicated to the parties. In the judgment Williams delivered last week, he set out each of the journalists’ grounds for seeking permission to appeal and added his reasons for adjourning their application.

In summary:

1. Grounds of appeal: Williams had not invited submissions on whether to anonymise judges.

   Judge’s reasons: “The issue of naming third parties was raised by the [children’s] guardian and by the father. That appeared to me to include the judges. When it became clear that the media parties distinguished between social workers, experts, guardians and judiciary, I gave the parties the opportunity to make further submissions.”

2. Grounds of appeal: He had not given even brief reasons for his decision.

   Judge’s reasons: There would have been time if the parties had not abandoned the hearing planned for 3 and 4 December. “I therefore do not consider it is open to the applicant to argue any injustice arising from this.”

3. Grounds of appeal: An order restricting the naming of judges in the historic proceedings is unprecedented and unsustainable.

   Judge’s reasons: The court must conduct a balancing exercise and, in the meantime, hold the ring by prohibiting publication.

4. Grounds of appeal: The issue is urgent.

   Judge’s reasons: “Regrettably, due to the parties’ election of a later half-day hearing rather than an earlier two-day hearing, [my judgment] will not be completed before I leave the jurisdiction at the commencement of my vacation.”

5. Grounds of appeal: The appeal enjoys sufficient prospects of success and its importance justifies an immediate grant of permission.

   Judge’s reasons: “The prospects of success are indeterminable… It would seem likely any appeal will have to revolve around my case-specific weighing of the relevant factors.”

Williams then explained what information could now be published and gave his reasons.

Returning to the question of naming the judges involved, Williams reviewed the case-law before considering the arguments from Tickle and Summers. No one had asked for the judges’ names to be withheld, they had argued. But how, he asked, would those concerned have known that a decision was being taken about them?

Past cases “all demonstrate that the court retains a discretion to refuse permission to publish the names of social workers, experts and judges”, Williams said. He continued:

The fact that a social worker is carrying out a public function with potentially huge implications for families does not mean that public accountability requires identification in all or even most cases…

In 2024, the placing of a name in the public domain opens the door to both (a) the generation on social media of the equivalent of a lynch mob, albeit with limited ability to tie their victim to the nearest tree… [and] (b) the identification of the home address of the named person, their family, and their movements.

He gave examples of family judges who had been the victims of harassment and, one case, a serious assault.

Williams then appeared to exonerate all those who were originally involved in the Sharif proceedings:

In this case, the evidence suggests that social workers, guardians, lawyers and judiciary acted within the parameters that law and social work practice set for them. Certainly to my reasonably well-trained eye there is nothing (save the benefit of hindsight) which indicates that the decisions reached in 2013, 2105 or 2019 were unusual or unexpected. Based on what was known at the time and applying the law at the time, I don’t see the judge or anyone else having any real alternative option…

Seeking to argue that individual social workers or guardians or judges should be held accountable is equivalent to holding the lookout on the Titanic responsible for its sinking rather than the decision-making of Captain Smith and the owners of the White Star Line or blaming the soldiers who went over the top in the Somme on 1 July 1916 for the failure of the offensive rather than the decision-making of the generals who drew up the plans.

Anyone involved in the proceedings whose name was published would, he believed, receive attention ranging from rude and discriminatory slurs to vilification, abuse and threats:

That I think is reasonably certain in the online world where a virtual lynch mob will readily be assembled in the current febrile atmosphere engendered online and fanned by the undermining of the rule of law and the judiciary worldwide, notably in the USA but in this country also where a headline identifying senior judiciary as “Enemies of the People” was seen as legitimate comment.

Williams drew a distinction between High Court judges — “we accept that we are in the public eye” — and lower levels of the judiciary: “for magistrates, the district and circuit bench, that is not part of their expectation”.

Judge’s conclusion

After conducting the required balancing exercise Williams concluded:

1. The press should have access to further information from the historic proceedings; their article 10 rights [to freedom of expression under the human rights convention] outweigh the article 8 [privacy] rights (once the redaction protocol has applied) of the children and the third parties and make this a proportionate interference with such rights.

2. The press should be able to report the information disclosed; their article 10 rights outweigh the article 8 rights (once the anonymity provisions are applied) of the children and the third parties and make this a proportionate interference with such rights.

3. The press cannot name third parties; their article 10 rights are outweighed by the article 8 rights of the third parties and would make naming them a disproportionate interference with such rights.

4. The press cannot name the judges; their article 10 rights are outweighed by the article 8 rights of the judges and would make naming them a disproportionate interference with such rights.

5. The press cannot report on the ongoing wardship proceedings or receive further evidence filed in those proceedings save by further order by me; their article 10 rights are outweighed by the article 8 and [article] 6 [fair hearing] rights of the children and some of the parties.

Appeal

We are told by the Court of Appeal that the judge’s order contained the following passage:

Subject to paragraph 17 below, no person may publish any information arising from the disclosure of the documents from these proceedings to the public, or a section of it, which includes…

• The name of any third parties referred to in the historic proceedings for the avoidance of doubt including social worker, guardian other named professionals and experts instructed in the proceedings and any judge who heard the historic proceedings (save for Mr Justice Williams)…

including not repeating such information by reference to the disclosed documents even if it is already in the public domain.

On 19 December, the master of the rolls Sir Geoffrey Vos granted Tickle and Summers permission to appeal against the highlighted part of that order on the grounds that their arguments had a real prospect of success. “The appeal raises questions that are of considerable public importance,” Vos added, “and it is in the public interest that the Court of Appeal considers them.”

Responses

Tickle and Summers have kindly sent me a statement:

We have been subjected to criticism in a published judgment — we would say unfairly so — for reporting in a news article that Mr Justice Williams refused us permission to appeal against his order banning the naming of judges in the Sara Sharif family law proceedings, instead of stating that he did not give permission and had adjourned his decision on our request, pending the reasons for his order being produced at an unspecified date in the new year.

We would say an adjournment in this context amounts to a functional ban due to the urgency of the matter.

Writing on the Transparency Project website, the family law specialist Lucy Reed KC made precisely this point, describing the judge’s decision as follows: “Today we learned that, following a refusal by Mr Justice Williams of a request for permission to appeal (technically an adjournment of the permission to appeal request pending the reasons for the decision being produced), the Court of Appeal has granted permission to appeal.”

As stated in case law, “news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.”

The timing of when Mr Justice Williams was to give his reasoning for his extraordinary order was left open-ended, despite the sentencing of Sara’s killers which was due to take place the following week. The issue was plainly urgent, as the Court of Appeal has recognised. In failing to give us permission to appeal he was frustrating our efforts to address the matter urgently.

Once Mr Justice Williams failed to give us permission to appeal against his ban, our only route to address this issue without further delay was to apply to the Court of Appeal for permission to challenge it.

Our challenge comes from a principled position that, as decision-makers exercising life-changing powers granted by parliament, judges should be named. We are concerned that the decision to grant anonymity to judges in this case could set a dangerous precedent when it comes to holding the judiciary to account in the future.

Williams has been heavily criticised by media representatives while Tickle and Summers have been supported by a former Old Bailey judge.

Interviewed by the Today programme on Saturday, Wendy Joseph KC told Radio 4 listeners that the need for privacy in the family courts did not undermine the principle of open justice. If there had been a direct threat to someone’s safety, she observed, we would have expected to have seen evidence of it.

Joseph continued:

Now I can’t say the judge didn’t have evidence of that. He may have done — but he certainly hasn’t shared that with anybody else. So, at the moment, all we’ve heard is that he has made a decision not to disclose the name of the judge or judges concerned.

He has not described any immediate threat or necessity. He has spoken of virtual lynch mobs and of the Titanic and of the Somme. But I think what one might expect to see more generally is evidence of direct threat, because it’s part of our very hard won rule of law — this principle of open justice — and the idea that we should derogate from that because we are unable to control social media is… certainly the thin end of a very thick wedge…

It is, if I may say so with the greatest respect to Mr Justice Williams, quite an unusual and surprising situation. And that’s only underlined by the fact that the master of the rolls, a very, very senior judge, has granted the journalists permission to appeal, not just upon the basis of public interest but because he has deemed, as he would have to do to grant leave, there is a real prospect of success.

Comment

I am not seeking to defend inaccurate journalism. I reported last Thursday, before Williams published his judgment, that two reporters’ application for permission to appeal had been adjourned rather than refused.

But there seems no justification for attacking their integrity, conflating them with an entirely separate television programme or citing a six-year old newspaper report which, on closer examination, gives a broadly accurate summary of a subtle legal distinction.

Williams chose not to follow the ruling of Mrs Justice Lieven — a rising star of the High Court family division — in a judgment I referred to last week. But he should still have heeded Lieven’s comments in a case won by Tickle last year. “The court is not an arbiter of the editorial content of reporting,” Lieven said. “It is of the greatest importance to understand that it is not for the court to consider the quality or fairness of… reporting.”

Nobody seems to have asked Williams to withhold the names of the judges concerned. He says “it emerged that the media parties considered there was a distinction to be drawn between identification of third parties and the identification of judges” — as if that came as some sort of surprise to him.

There was a good reason why the judges had not asked for their names to be withheld, Williams suggested: they had no idea that the question of identifying them was under consideration. But Williams could have told them. Because the local authority that began care proceeding in 2012 was Surrey County Council and because Williams had been family presiding judge of the south-eastern circuit, he would have had no trouble tracking them down; indeed, he might even know them personally. Shouldn’t they have been asked for their views?

Williams is right to be worried about the safety of his colleagues. Various precautions have already been taken in response to what are certainly valid concerns. But a diminution of a universally accepted constitutional principle is not something for a single judge to slip into a ruling without having invited and considered full arguments on both sides.

As I argued a week ago, such an unprecedented departure from open justice was surely something that the Court of Appeal would wish to consider. To have thought otherwise is to demonstrate poor judgement.

Update 6 January: a detailed critique of Williams’s judgment was published last week by The Transparency Project.